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Are California’s judges above public accountability?

The state Commission on Judicial Performance, which disciplines judges for misconduct, wants us to think they aren’t. The reality, though, appears quite different.

The commission, commonly called CJP, is fighting to keep most of its disciplinary decisions secret.

Pressed by judicial reform advocates who have long claimed that wayward judges suffer little discipline and what discipline is imposed isn’t tough nor is it transparent, the Legislature voted last year to have State Auditor Elaine Howle to audit the CJP.

But the CJP quickly ran to court in San Francisco, suing Howle to stop a deep dive into the commission’s disciplinary practices. So we have one state agency suing to stop another state agency from watchdogging it at the request of elected officials. The case remains open. A decision on a CJP motion to dismiss it is pending.

CJP claims in court papers that Howle — and thus the public — has no right to examine “the discretionary exercise of CJP’s core functions” and to see if it’s taking an “appropriate and reasonable course of action (on) the complaints it receives” and their disposition.

Reform advocates have been criticizing CJP for years for a wet-noodle approach to discipline and keeping records about the number of complaints made against individual judges secret. In 2016, CJP dismissed 87 percent of the complaints it received, records show. It deferred others and instituted one — one — formal disciplinary proceeding. It remains pending.

The huge majority of cases fizzle. But should they? Consider some complaints CJP didn’t act on.

Ralph Kanz, an Alameda County activist , filed complaints against judges he encountered during a lawsuit.

Kanz had sued several banks and mortgage companies in 2012, alleging fraud. The case, which dragged on for years, was assigned to Judge Marshall Whitley in Alameda Superior Court. Kanz knows his way around public records and eventually began pulling documents on the judge.

Real estate records showed Whitley had “been doing business with multiple defendants in the (case) for at least six years before being assigned to the case,” Kanz eventually wrote in a CJP ethics complaint.

Whitley took a $417,000 loan on his Piedmont home from one of the loan companies in the case, RPM Mortgage after the case was assigned to him, Kanz found. In all, Whitley was more than $800,000 in debt to RPM Mortgage and another defendant, Wells Fargo, according to public records.

Kanz also found that one of the appellate justices who eventually heard his appeal on the case after it was dismissed. Justice Steven A Brick, a former Alameda judge, was drawing a pension from a law firm where he had once been a partner. That firm represented Wells Fargo. “Brick should have recused himself from the case,” Kanz wrote to the CPJ.

When Whitley retired toward the end of Kanz’s suit, it was assigned to Judge Lawrence Appel. By looking at Appel’s annual Statement of Economic Interest, Kanz found that he had somewhere between $300,003 and $3 million (the reporting ranges are extraordinarily broad) “under the management of Bank of America (another defendant) and its subsidiaries,” he wrote in a letter to county Presiding Judge Morris Jacobson last year.

Nothing was done. Jacobson never answered the letter, Kanz said. And his complaints to CPJ fell flat. They “provided an insufficient basis for commission proceedings” involving Whitely and Brick, a staff lawyer wrote to him.

Yet ethics rules of the judge’s state they must avoid situations where “circumstances are such that a reasonable person aware of the facts would doubt the justice’s ability to be impartial.”

In matters of conflict of interest perception matters as much as, if not more than reality. The appearance of conflict is as abhorrent as a conflict itself. Both Whitley, who’s retired from the bench, and Brick, who died in June, clearly had, at a minimum, the appearance of a conflict of interest in Kanz’s case by having financial dealings with the defendants. So did Appel. Whitley didn’t return messages I left for him at a resolution dispute firm where he works. I couldn’t reach Appel.

Thomas Peele is a Pulitzer Prize winning investigative reporter on the Bay Area News Group's regional team. He has worked at newspapers, including Newsday, for 34 years in California and elsewhere. Peele focuses on government accountability, public records and data, often speaking about transparency laws publicly.